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Travelers beware: CBP can search your electronic device

/ Serotte Reich LLP/
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As the number of border searches of electronic devices performed by United States Customs & Border Protection (CBP) continues to increase, it is imperative that travelers remain informed about the current policies in place.

In January, CBP issued a new 2018 customs directive that clarifies that officers may not to use your device to access information that is solely stored remotely (such as on the cloud) during a basic search. Additionally, without reasonable suspicion of criminal behavior or a national security concern, they should not copy the data on your device or connect it to an external device to analyze the contents. Officers are also instructed to take care not to make changes to the content of your device during a search.

When you cross the border, what can you expect during an inspection performed by a CBP officer? According to Secretary of Homeland Security Kirstjen Nielsen, officers are free to ask for your cell phone, laptop or tablet -- and your passcode. They can request that you turn over your unlocked phone and refusing to comply will not prevent CBP from confiscating your device. If you do refuse, you could possibly be detained for an indeterminate amount of time while they review and analyze the contents of your device. CBP can also retain your device for further review; they are not required to return it to you before you leave the port of entry.

Although the directive introduced in January includes guidelines for what CBP should or should not do, there is still considerable leeway when it comes to the search and seizure of electronic devices. The Electronic Frontier Foundation, a nonprofit organization devoted to defending civil liberties in the digital world, pointed out in a recent report that this policy is “full of loopholes and vague language” that allows officers to encroach upon travelers’ constitutional rights. As the directive is written, if “reasonable suspicion” exists, CBP officers are permitted conduct what is considered an advanced search. In this case, an officer can connect external equipment to a traveler’s electronic device and review, copy and/or analyze its contents.

If you are alarmed by the potential violation of your privacy while crossing the border, you’re not alone. Neema Singh Guliani, legislative counsel to the American Civil Liberties Union (ACLU), noted that “this policy falls far short of what the constitution requires – a search warrant based on probable cause.”

As it stands, here are measures that travelers can take prior to crossing the border in an effort to protect their privacy:

      • Review what is on your phone – photos, apps, search histories – before crossing the border, taking into consideration that anything stored on your device is fair game in the event that an officer requests it. Store anything sensitive or private on a secure cloud storage account.

      • Only bring what’s necessary with you. If you can avoid traveling without your laptop or tablet, leave it at home.

      • Bring a travel-only phone (a blank “burner” phone) or laptop that does not contain any sensitive information.

      • Set your phone to airplane mode prior to crossing the border. The new directive instructs CBP to disable network connectivity as they are to avoid intentionally retrieving information that is solely stored remotely. They are supposed to ask you to disable connectivity or do so themselves. Err on the side of caution and change your settings ahead of time.

      • Know your rights. Supervisory approval is required in order for a CBP officer to detain your device after you depart the port of entry. A supervisor is also supposed to approve and, if at all possible, be present for an advanced search.

      • If you have provided your passcode for an officer to inspect your electronic device, be sure to change it afterword. CBP is directed to delete or destroy passcodes after a search is conducted. However, it is advisable to change all passcodes to ensure that your information stays secure.

    For further information:

    Visit CBP's official website: https://www.cbp.gov
    Find updates from civil liberties advocates:
    The Electronic Frontier Foundation: https://www.eff.org
    American Civil Liberties Union: https://www.aclu.org